Fear of civil liability could result in Crown attorneys being reluctant to give advice

Criminal Law - Constitutional Authority - Prosecutorial Responsibility

Plaintiff was subjected to “Mr. Big” operation, in course of which he confessed murder to undercover police officer and was charged with first degree murder, but was acquitted after confessions were excluded from evidence. Plaintiff brought action against provincial Crown and three Crown attorneys (“Crown defendants”) for negligence in providing police with legal advice, other torts, and breaches of Canadian Charter of Rights and Freedoms, and against police defendants for negligent investigation and other torts. Police defendants crossclaimed for indemnity against Crown defendants, who brought motion to strike action and crossclaim, with result that action was struck, but not crossclaim. Appeal by Crown defendants allowed. Appeal judge found that motion judge erred in refusing to strike crossclaim on basis that it was not plain and obvious that common law prosecutorial immunity applied. Appeal judge found that given existing appellate authority on prosecutorial immunity, nature of claim in negligence, and policy considerations, it was plain and obvious that defendants' claim would fail. Police defendants appealed. Appeal dismissed. It was plain and obvious that prosecutorial immunity barred crossclaim. Imposing liability on Crown attorneys for negligent advice provided to police in course of investigation would have engaged twin policy concerns of diversion from public duties and chilling effect leading to defensive lawyering that gave rise to prosecutorial immunity. Fear of civil liability for negligent legal advice could result in Crown attorneys being reluctant to give advice, or to veer into impermissible direction of police.

Smith v. Ontario (Attorney General) (2019), 2019 CarswellOnt 12961, 2019 ONCA 651, Janet Simmons J.A., M. Tulloch J.A., and David Brown J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 2497, 2018 ONSC 993, Warkentin R.S.J., Swinton J., and C. Horkins J. (Ont. Div. Ct.).

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